In re: SEALED CASE
No. 02-001.
No. 02-002.
United States Foreign Intelligence Surveillance Court of Review.
Decided November 18, 2002.
Argued September 9, 2002.
310 F.3d 717
Ann Beeson, Jameel Jaffer, Steven R. Shapiro, for amicus curiae American Civil Liberties Union, with whom James X. Dempsey for Center for Democracy and Technology, Kate Martin for Center for National Security Studies, David L. Sobel for Electronic Privacy Information Center, and Lee Tien for Electronic Frontier Foundation, were on the brief.
John D. Cline, Zachary A. Ives, and Joshua Dratel, for amicus curiae National Association of Criminal Defense Lawyers.
Before: GUY, Senior Circuit Judge, Presiding; SILBERMAN and LEAVY, Senior Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM:
This is the first appeal from the Foreign Intelligence Surveillance Court to the Court of Review since the passage of the Foreign Intelligence Surveillance Act (FISA),
Not surprisingly this case raises important questions of statutory interpretation, and constitutionality. After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government‘s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion.
The court‘s decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an “agent of a foreign power” as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government‘s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.[ ]3
The FISA court authorized the surveillance, but imposed certain restrictions, which the government contends are neither mandated nor authorized by FISA. Particularly, the court ordered that
law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division [of the Department of Justice] shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Division‘s directing or controlling the investigation using FISA searches and surveillances toward law enforcement objectives.
To ensure the Justice Department followed these strictures the court also fashioned what the government refers to as a “chaperone requirement“; that a unit of the Justice Department, the Office of Intelligence Policy and Review (OIPR) (composed of 31 lawyers and 25 support staff), “be invited” to all meetings between the FBI and the Criminal Division involving consultations for the purpose of coordinating efforts “to investigate or protect against foreign attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign powers or their agents.” If representatives of OIPR are unable to attend such meetings, “OIPR shall be apprized of the substance of the meetings forthwith in writing so that the Court may be notified at the earliest opportunity.”
These restrictions are not original to the order appealed.4 They were actually set forth in an opinion written by the former Presiding Judge of the FISA court on May 17 of this year. But since that opinion did not accompany an order conditioning an approval of an electronic surveillance application it was not appealed. It is, however, the basic decision before us and it is its rationale that the government challenges. The opinion was issued after an oral argument before all of the then-serving FISA district judges and clearly represents the views of all those judges.5
We think it fair to say, however, that the May 17 opinion of the FISA court does not clearly set forth the basis for its decision. It appears to proceed from the assumption that FISA constructed a barrier between counterintelligence/intelligence officials and law enforcement officers in the Executive Branch — indeed, it uses the word “wall” popularized by certain commentators (and journalists) to describe that supposed barrier.
The “wall” emerges from the court‘s implicit interpretation of FISA. The court apparently believes it can approve applications for electronic surveillance only if the government‘s objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. But the court neither refers to any FISA language supporting that view, nor does it reference the Patriot Act amendments, which the government contends specifically altered FISA to make clear that an application could be obtained even if criminal prosecution is the primary counter mechanism.
Instead the court relied for its imposition of the disputed restrictions on its statutory authority to approve “minimization procedures” designed to prevent the acquisition, retention, and dissemination within the government of material gathered in an electronic surveillance that is unnecessary to the government‘s need for foreign intelligence information.
This court has authority “to review the denial of any application” under FISA.
II.
The government makes two main arguments. The first, it must be noted, was not presented to the FISA court; indeed, insofar as we can determine it has never previously been advanced either before a court or Congress.6 That argument is that the supposed pre-Patriot Act limitation in FISA that restricts the government‘s intention to use foreign intelligence information in criminal prosecutions is an illusion; it finds no support in either the language of FISA or its legislative history. The government does recognize that several courts of appeals, while upholding the use of FISA surveillances, have opined that FISA may be used only if the government‘s primary purpose in pursuing foreign intelligence information is not criminal prosecution, but the government argues that those decisions, which did not carefully analyze the statute, were incorrect in their statements, if not incorrect in their holdings.
Alternatively, the government contends that even if the primary purpose test was a legitimate construction of FISA prior to the passage of the Patriot Act, that Act‘s amendments to FISA eliminate that concept. And as a corollary, the government insists the FISA court‘s construction of the minimization procedures is far off the mark both because it is a misconstruction of those provisions per se, as well as an end run around the specific amendments in the Patriot Act designed to deal with the real issue underlying this case. The government, moreover, contends that the FISA court‘s restrictions, which the court described as minimization procedures, are so intrusive into the operation of the Department of Justice as to exceed the constitutional authority of Article III judges.
The government‘s brief, and its supplementary brief requested by this court, also set forth its view that the primary purpose test is not required by the Fourth Amendment. The ACLU and NACDL argue, inter alia, the contrary; that the statutes are unconstitutional unless they are construed as prohibiting the government from obtaining approval of an application under FISA if its “primary purpose” is criminal prosecution.
The 1978 FISA
We turn first to the statute as enacted in 1978.7 It authorizes a judge on the FISA court to grant an application for an order approving electronic surveillance to “obtain foreign intelligence information” if “there is probable cause to believe that ... the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that “each of the facilities or places at which the surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.”
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against —
A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
The definition of an agent of a foreign power, if it pertains to a U.S. person (which is the only category relevant to this case), is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities ... which activities involve or may involve a violation of the criminal statutes of the United States,” or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor.”
In light of these definitions, it is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department‘s ability to obtain FISA orders if it intended to prosecute the targeted agents — even for foreign intelligence crimes. To be sure, section 1804, which sets forth the elements of an application for an order, required a national security official in the Executive Branch — typically the Director of the FBI — to certify that “the purpose” of the surveillance is to obtain foreign intelligence information (amended by the Patriot Act to read “a significant purpose“). But as the government now argues, the definition of foreign intelligence information includes evidence of crimes such as espionage, sabotage or terrorism. Indeed, it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power — if he or she is a U.S. person — is grounded on criminal conduct.
It does not seem that FISA, at least as originally enacted, even contemplated that the FISA court would inquire into the government‘s purpose in seeking foreign intelligence information. Section 1805, governing the standards a FISA court judge is to use in determining whether to grant a surveillance order, requires the judge to find that
the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) of this title and any other information furnished under section 1804(d) of this title.
[T]he term “foreign intelligence information,” especially as defined in subparagraphs (e)(1)(B) and (e)(1)(C), can include evidence of certain crimes relating to sabotage, international terrorism, or clandestine intelligence activities. With respect to information concerning U.S. persons, foreign intelligence information includes information necessary to protect against clandestine intelligence activities of foreign powers or their agents. Information about a spy‘s espionage activities obviously is within this definition, and it is most likely at the same time evidence of criminal activities.
H.R.REP. No. 95-1283 (hereinafter “H. REP.“) at 49 (1978) (emphasis added).
The government argues persuasively that arresting and prosecuting terrorist agents of, or spies for, a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity. The government might wish to surveil the agent for some period of time to discover other participants in a conspiracy or to uncover a foreign power‘s plans, but typically at some point the government would wish to apprehend the agent and it might be that only a prosecution would provide sufficient incentives for the agent to cooperate with the government. Indeed, the threat of prosecution might be sufficient to “turn the agent.” It would seem that the Congress actually anticipated the government‘s argument and explicitly approved it. The House Report said:
How this information may be used “to protect” against clandestine intelligence activities is not prescribed by the definition of foreign intelligence information, although, of course, how it is used may be affected by minimization procedures.... And no information acquired pursuant to this bill could be used for other than lawful purposes.... Obviously, use of “foreign intelligence information” as evidence in a criminal trial is one way the Government can lawfully protect against clandestine intelligence activities, sabotage, and international terrorism. The bill, therefore, explicitly recognizes that information which is evidence of crimes involving [these activities] can be sought, retained, and used pursuant to this bill.
Id. (emphasis added). The Senate Report is on all fours:
U.S. persons may be authorized targets, and the surveillance is part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnaping, and terrorist acts committed by or on behalf of foreign powers. Intelligence and criminal law enforcement tend to merge in this area.... [S]urveillances conducted under [FISA] need not stop once conclusive evidence of a crime is obtained, but instead may be extended longer where protective measures other than arrest and prosecution are more appropriate.
S.REP. No. 95-701 (hereinafter “S. REP.“) at 10-11 (1978) (emphasis added).
Congress was concerned about the government‘s use of FISA surveillance to obtain information not truly intertwined with the government‘s efforts to protect against threats from foreign powers. Accordingly, the certification of purpose under section 1804(a)(7)(B) served to
prevent the practice of targeting, for example, a foreign power for electronic surveillance when the true purpose of the surveillance is to gather information about an individual for other than foreign intelligence purposes. It is also designed to make explicit that the sole purpose of such surveillance is to secure “foreign intelligence information,” as defined, and not to obtain some other type of information.
H. REP. at 76; see also S. REP. at 51. But Congress did not impose any restrictions on the government‘s use of the foreign intelligence information to prosecute agents of foreign powers for foreign intelligence crimes. Admittedly, the House, at least in one statement, noted that FISA surveillances “are not primarily for the purpose of gathering evidence of a crime. They are to obtain foreign intelligence information, which when it concerns United States persons must be necessary to important national concerns.” H. REP. at 36. That, however, was an observation, not a proscription. And the House as well as the Senate made clear that prosecution is one way to combat foreign intelligence crimes. See id.; S. REP. at 10-11.
Several circuits have followed Truong in applying similar versions of the “primary purpose” test, despite the fact that Truong was not a FISA decision. (It was an interpretation of the Constitution, in the context of measuring the boundaries of the President‘s inherent executive authority, and we discuss Truong‘s constitutional analysis at length in Section III of this opinion.) In one of the first major challenges to a FISA search, United States v. Megahey, 553 F.Supp. 1180 (E.D.N.Y. 1982), aff‘d sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir.1984), the district court acknowledged that while Congress clearly viewed arrest and prosecution as one of the possible outcomes of a FISA investigation, surveillance under FISA would nevertheless be “appropriate only if foreign intelligence surveillance is the Government‘s primary purpose.” Id. at 1189-90. Six months earlier, another judge in the same district had held that the Truong analysis did not govern FISA cases, since a FISA order was a warrant that met Fourth Amendment standards. United States v. Falvey, 540 F.Supp. 1306, 1314 (E.D.N.Y.1982). Falvey, however, was apparently not appealed and Megahey was. The Second Circuit, without reference to Falvey, and importantly in the context of affirming the conviction, approved Megahey‘s finding that the surveillance was not “directed towards criminal investigation or the institution of a criminal prosecution.” Duggan, 743 F.2d at 78 (quoting Megahey, 553 F.Supp. at 1190). Implicitly then, the Second Circuit endorsed the Megahey dichotomy. Two other circuits, the Fourth and the Eleventh, have similarly approved district court findings that a surveillance was primarily for foreign intelligence purposes without any discussion — or need to discuss — the validity of the dichotomy. See United States v. Pelton, 835 F.2d 1067, 1075-76 (4th Cir.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir.1987), cert. denied, 485 U.S. 937, 1115, 99 L.Ed.2d 275 (1988).
Then, the First Circuit, seeing Duggan as following Truong, explicitly interpreted FISA‘s purpose wording in section 1804(a)(7)(B) to mean that “[a]lthough evidence obtained under FISA subsequently may be used in criminal prosecutions, the investigation of criminal activity cannot be the primary purpose of the surveillance.” United States v. Johnson, 952 F.2d 565, 572 (1st Cir.1991) (citations omitted), cert. denied, 506 U.S. 816, 113 S.Ct. 58, 121 L.Ed.2d 27 (1992). Notably, however, the Ninth Circuit has refused
to draw too fine a distinction between criminal and intelligence investigations. “International terrorism,” by definition, requires the investigation of activities that constitute crimes. That the government may later choose to prosecute is irrelevant.... FISA is meant to take into account “[t]he differences between ordinary criminal investigations to gather evidence of specific crimes and foreign counterintelligence investigations to uncover and monitor clandestine activities....”
United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir.1988) (citations omitted).
Neither Duggan nor Johnson tied the “primary purpose” test to actual statutory language. In Duggan the court stated that “[t]he requirement that foreign intelligence information be the primary objective of the surveillance is plain,” and the district court was correct in “finding that ‘the purpose of the surveillance in this case, both initially and throughout, was to secure foreign intelligence information and was not, as [the] defendants assert, directed towards criminal investigation or the institution of a criminal prosecution.‘” Duggan, 743 F.2d at 77-78 (quoting Megahey, 553 F.Supp. at 1190).13 Yet the court never explained why it apparently read foreign intelligence information to exclude evidence of crimes — endorsing the district court‘s implied dichotomy — when the statute‘s definitions of foreign intelligence and foreign agent are actually cast in terms of criminal conduct. (It will be recalled that the type of foreign intelligence with which we are concerned is really counterintelligence, see supra note 9.) And Johnson did not even focus on the phrase “foreign intelligence information” in its interpretation of the “purpose” language in section 1804(a)(7)(B). Johnson, 952 F.2d at 572.
In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government‘s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution. In order to understand the FISA court‘s decision, however, it is necessary to trace developments and understandings within the Justice Department post-Truong as well as after the passage of the Patriot Act. As we have noted, some time in the 1980s — the exact moment is shrouded in historical mist — the Department applied the Truong analysis to an interpretation of the FISA statute. What is clear is that in 1995 the Attorney General adopted “Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations.”
Apparently to avoid running afoul of the primary purpose test used by some courts, the 1995 Procedures limited contacts between the FBI and the Criminal Division in cases where FISA surveillance or searches were being conducted by the FBI for foreign intelligence (FI) or foreign counterintelligence (FCI) purposes.14 The procedures state that “the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division‘s directing or controlling the FI or FCI investigation toward law enforcement objectives.” 1995 Procedures at 2, ¶ 6 (emphasis added). Although these procedures provided for significant information sharing and coordination between criminal and FI or FCI investigations, based at least in part on the “directing or controlling” language, they eventually came to be narrowly interpreted within the Department of Justice, and most particularly by OIPR, as requiring OIPR to act as a “wall” to prevent the FBI intelligence officials from communicating with the Criminal Division regarding ongoing FI or FCI investigations. See Final Report of the Attorney General‘s Review Team on the Handling of the Los Alamos National Laboratory Investigation (AGRT Report), Chapter 20 at 721-34 (May 2000). Thus, the focus became the nature of the underlying investigation, rather than the general purpose of the surveillance. Once prosecution of the target was being considered, the procedures, as interpreted by OIPR in light of the case law, prevented the Criminal Division from providing any meaningful advice to the FBI. Id.
The Department‘s attitude changed somewhat after the May 2000 report by the Attorney General and a July 2001 Report by the General Accounting Office both concluded that the Department‘s concern over how the FISA court or other federal courts might interpret the primary purpose test has inhibited necessary coordination between intelligence and law enforcement officials. See id. at 721-34;15 General Accounting Office, FBI Intelligence Investigations: Coordination Within Justice on Counterintelligence Criminal Matters is Limited (July 2001) (GAO-01-780) (GAO Report) at 3. The AGRT Report also concluded, based on the text of FISA and its legislative history, that not only should the purpose of the investigation not be inquired into by the courts, but also that Congress affirmatively anticipated that the underlying investigation might well have a criminal as well as foreign counterintelligence objective. AGRT Report at 737. In response to the AGRT Report, the Attorney General, in January 2000, issued additional, interim procedures designed to address coordination problems identified in that report. In August 2001, the Deputy Attorney General issued a memorandum clarifying Department of Justice policy governing intelligence sharing and establishing additional requirements. (These actions, however, did not replace the 1995 Procedures.) But it does not appear that the Department thought of these internal procedures as “minimization procedures” required under FISA.16 Nevertheless, the FISA court was aware that the procedures were being followed by the Department and apparently adopted elements of them in certain cases.
The passage of the Patriot Act altered and to some degree muddied the landscape. In October 2001, Congress amended FISA to change “the purpose” language in 1804(a)(7)(B) to “a significant purpose.” It also added a provision allowing “Federal officers who conduct electronic surveillance to acquire foreign intelligence information” to “consult with Federal law enforcement officers to coordinate efforts to investigate or protect against” attack or other grave hostile acts, sabotage or international terrorism, or clandestine intelligence activities, by foreign powers or their agents.
The Attorney General interpreted the Patriot Act quite differently. On March 6, 2002, the Attorney General approved new “Intelligence Sharing Procedures” to implement the Act‘s amendments to FISA. The 2002 Procedures supersede prior procedures and were designed to permit the complete exchange of information and advice between intelligence and law enforcement officials. They eliminated the “direction and control” test and allowed the exchange of advice between the FBI, OIPR, and the Criminal Division regarding “the initiation, operation, continuation, or expansion of FISA searches or surveillance.” On March 7, 2002, the government filed a motion with the FISA court, noting that the Department of Justice had adopted the 2002 Procedures and proposing to follow those procedures in all matters before the court. The government also asked the FISA court to vacate its orders adopting the prior procedures as minimization procedures in all cases and imposing special “wall” procedures in certain cases.
Unpersuaded by the Attorney General‘s interpretation of the Patriot Act, the court ordered that the 2002 Procedures be adopted, with modifications, as minimization procedures to apply in all cases. The court emphasized that the definition of minimization procedures had not been amended by the Patriot Act, and reasoned that the 2002 Procedures “cannot be used by the government to amend the Act in ways Congress has not.” The court explained:
Given our experience in FISA surveillances and searches, we find that these provisions in sections II.B and III [of the 2002 Procedures], particularly those which authorize criminal prosecutors to advise FBI intelligence officials on the initiation, operation, continuation or expansion of FISA‘s intrusive seizures, are designed to enhance the acquisition, retention and dissemination of evidence for law enforcement purposes, instead of being consistent with the need of the United States to “obtain, produce, and disseminate foreign intelligence information“... as mandated in § 1801(h) and § 1821(4).
May 17, 2001 Opinion at 22 (emphasis added by the FISA court).18 The FISA court also adopted a new rule of court procedure, Rule 11, which provides that “[a]ll FISA applications shall include informative descriptions of any ongoing criminal investigations of FISA targets, as well as the substance of any consultations between the FBI and criminal prosecutors at the Department of Justice or a United States Attorney‘s Office.”
Undeterred, the government submitted the application at issue in this appeal on July 19, 2002, and expressly proposed using the 2002 Procedures without modification. In an order issued the same day, the FISA judge hearing the application granted an order for surveillance of the target but modified the 2002 Procedures consistent with the court‘s May 17, 2002 en banc order. It is the July 19, 2002 order that the government appeals, along with an October 17, 2002 order granting, with the same modifications as the July 19 order, the government‘s application for renewal of the surveillance in this case. Because those orders incorporate the May 17, 2002 order and opinion by reference, however, that order and opinion are before us as well.
* * * *
Essentially, the FISA court took portions of the Attorney General‘s augmented 1995 Procedures — adopted to deal with the primary purpose standard — and imposed them generically as minimization procedures. In doing so, the FISA court erred. It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied. The court mistakenly categorized the augmented 1995 Procedures as FISA minimization procedures and then compelled the government to utilize a modified version of those procedures in a way that is clearly inconsistent with the statutory purpose.
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person‘s consent, unless such person‘s identity is necessary to understand foreign intelligence information or assess its importance.
Section 1801(h) also contains the following proviso:
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes....
As is evident from the face of section 1801(h), minimization procedures are designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information. If the data is not foreign intelligence information as defined by the statute, the procedures are to ensure that the government does not use the information to identify the target or third party, unless such identification is necessary to properly understand or assess the foreign intelligence information that is collected.
The minimization procedures allow, however, the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes. See
The FISA court‘s decision and order not only misinterpreted and misapplied minimization procedures it was entitled to impose, but as the government argues persuasively, the FISA court may well have exceeded the constitutional bounds that restrict an Article III court. The FISA court asserted authority to govern the internal organization and investigative procedures of the Department of Justice which are the province of the Executive Branch (Article II) and the Congress (Article I). Subject to statutes dealing with the organization of the Justice Department, however, the Attorney General has the responsibility to determine how to deploy personnel resources. As the Supreme Court said in Morrison v. Olson in cautioning the Special Division of the D.C. Circuit to avoid unauthorized administrative guidance of Independent Counsel, “[t]he gradual expansion of the authority of the Special Division might in another context be a bureaucratic success story, but it would be one that would have serious constitutional ramifications.” 487 U.S. 654, 684, 108 S.Ct. 2597, 2615, 101 L.Ed.2d 569 (1988).19
* * * *
No committee reports accompanied the Patriot Act but the floor statements make congressional intent quite apparent. The Senate Judiciary Committee Chairman Senator Leahy acknowledged that “[p]rotection against these foreign-based threats by any lawful means is within the scope of the definition of ‘foreign intelligence information,’ and the use of FISA to gather evidence for the enforcement of these laws was contemplated in the enactment of FISA.” 147 Cong. Rec. S11004 (Oct. 25, 2001). “This bill ... break[s] down traditional barriers between law enforcement and foreign intelligence. This is not done just to combat international terrorism, but for any criminal investigation that overlaps a broad definition of ‘foreign intelligence.‘” 147 Cong. Rec. S10992 (Oct. 25, 2001) (statement of Sen. Leahy). And Senator Feinstein, a “strong support[er],” was also explicit. The ultimate objective was to make it
easier to collect foreign intelligence information under the Foreign Intelligence Surveillance Act, FISA. Under current law, authorities can proceed with surveillance under FISA only if the primary purpose of the investigation is to collect foreign intelligence.
But in today‘s world things are not so simple. In many cases, surveillance will have two key goals — the gathering of foreign intelligence, and the gathering of evidence for a criminal prosecution. Determining which purpose is the “primary” purpose of the investigation can be difficult, and will only become more so as we coordinate our intelligence and law enforcement efforts in the war against terror.
Rather than forcing law enforcement to decide which purpose is primary — law enforcement or foreign intelligence gathering, this bill strikes a new balance. It will now require that a “significant” purpose of the investigation must be foreign intelligence gathering to proceed with surveillance under FISA.
The effect of this provision will be to make it easier for law enforcement to obtain a FISA search or surveillance warrant for those cases where the subject of the surveillance is both a potential source of valuable intelligence and the potential target of a criminal prosecution. Many of the individuals involved in supporting the September 11 attacks may well fall into both of these categories.
147 Cong. Rec. S10591 (Oct. 11, 2001).
To be sure, some Senate Judiciary Committee members including the Chairman were concerned that the amendment might grant too much authority to the Justice Department — and the FISA court. Senator Leahy indicated that the change to significant purpose was “very problematic” since it would “make it easier for the FBI to use a FISA wiretap to obtain information where the Government‘s most important motivation for the wiretap is for use in a criminal prosecution.” 147 Cong. Rec. S10593 (Oct. 11, 2001). Therefore he suggested that “it will be up to the courts to determine how far law enforcement agencies may use FISA for criminal investigation and prosecution beyond the scope of the statutory definition of ‘foreign intelligence information.‘” 147 Cong. Rec. S11004 (Oct. 25, 2001) (emphasis added). But the only dissenting vote against the act was cast by Senator Feingold. For the Record: Senate Votes, 59 CONG. QUARTERLY (WKLY.) 39, Oct. 13, 2001, at 2425. Senator Feingold recognized that the change to “significant purpose” meant that the government could obtain a FISA warrant “even if the primary purpose is a criminal investigation,” and was concerned that this development would not respect the protections of the Fourth Amendment. 147 Cong. Rec. S11021 (Oct. 25, 2001).
In sum, there can be no doubt as to Congress’ intent in amending section 1804(a)(7)(B). Indeed, it went further to emphasize its purpose in breaking down barriers between criminal law enforcement and intelligence (or counterintelligence) gathering by adding section 1806(k):
(k) Consultation with Federal law enforcement officer
(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with Federal law enforcement officers to coordinate efforts to investigate or protect against
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; or
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section [1804](a)(7)(B) of this title or the entry of an order under section [1805] of this title.
The FISA court noted this amendment but thought that Congress’ approval of consultations was not equivalent to authorizing law enforcement officers to give advice to officers who were conducting electronic surveillance nor did it sanction law enforcement officers “directing or controlling” surveillances. However, dictionary definitions of “consult” include giving advice. See, e.g., OXFORD ENGLISH DICTIONARY ONLINE (2d ed.1989). Beyond that, when Congress explicitly authorizes consultation and coordination between different offices in the government, without even suggesting a limitation on who is to direct and control, it necessarily implies that either could be taking the lead.
Neither amicus brief defends the reasoning of the FISA court. NACDL‘s brief makes no attempt to interpret FISA or the Patriot Act amendments but rather argues the primary purpose test is constitutionally compelled. The ACLU relies on Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
The ACLU insists that the significant purpose amendment only “clarified” the law permitting FISA surveillance orders “even if foreign intelligence is not its exclusive purpose” (emphasis added). In support of this rather strained interpretation, which ignores the legislative history of the Patriot Act, the ACLU relies on a September 10, 2002 hearing of the Judiciary Committee (the day after the government‘s oral presentation to this court) at which certain senators made statements — somewhat at odds with their floor statements prior to the passage of the Patriot Act — as to what they had intended the year before. The D.C. Circuit has described such post-enactment legislative statements as “legislative future” rather than legislative history, not entitled to authoritative weight. See General Instrument Corp. v. FCC, 213 F.3d 724, 733 (D.C.Cir.2000).
Accordingly, the Patriot Act amendments clearly disapprove the primary purpose test. And as a matter of straightforward logic, if a FISA application can be granted even if “foreign intelligence” is only a significant — not a primary — purpose, another purpose can be primary. One other legitimate purpose that could exist is to prosecute a target for a foreign intelligence crime. We therefore believe the Patriot Act amply supports the government‘s alternative argument but, paradoxically, the Patriot Act would seem to conflict with the government‘s first argument because by using the term “significant purpose,” the Act now implies that another purpose is to be distinguished from a foreign intelligence purpose.
The government heroically tries to give the amended section 1804(a)(7)(B) a wholly benign interpretation. It concedes that “the ‘significant purpose’ amendment recognizes the existence of the dichotomy between foreign intelligence and law enforcement,” but it contends that “it cannot be said to recognize (or approve) its legitimacy.” Supp. Br. of U.S. at 25 (emphasis in original). We are not persuaded. The very letter the Justice Department sent to the Judiciary Committee in 2001 defending the constitutionality of the significant purpose language implicitly accepted as legitimate the dichotomy in FISA that the government now claims (and we agree) was false. It said, “it is also clear that while FISA states that ‘the’ purpose of a search is for foreign surveillance, that need not be the only purpose. Rather, law enforcement considerations can be taken into account, so long as the surveillance also has a legitimate foreign intelligence purpose.” The senatorial statements explaining the significant purpose amendments which we described above are all based on the same understanding of FISA which the Justice Department accepted — at least until this appeal. In short, even though we agree that the original FISA did not contemplate the “false dichotomy,” the Patriot Act actually did — which makes it no longer false. The addition of the word “significant” to section 1804(a)(7)(B) imposed a requirement that the government have a measurable foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes. Although section 1805(a)(5), as we discussed above, may well have been intended to authorize the FISA court to review only the question whether the information sought was a type of foreign intelligence information, in light of the significant purpose amendment of section 1804 it seems section 1805 must be interpreted as giving the FISA court the authority to review the government‘s purpose in seeking the information.
The important point is — and here we agree with the government — the Patriot Act amendment, by using the word “significant,” eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses. If the certification of the application‘s purpose articulates a broader objective than criminal prosecution — such as stopping an ongoing conspiracy — and includes other potential non-prosecutorial responses, the government meets the statutory test. Of course, if the court concluded that the government‘s sole objective was merely to gain evidence of past criminal conduct — even foreign intelligence crimes — to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied.
The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government‘s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information — such as evidence of ordinary crimes or scandals. See supra at p. 725. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority.
Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the
III.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense. Finally, “warrants must particularly describe the `things to be seized,‘” as well as the place to be searched.
The term “may involve” not only requires less information regarding the crime involved, but also permits electronic surveillance at some point prior to the time when a crime sought to be prevented, as for example, the transfer of classified documents, actually occurs.
against an American reporter merely because he gathers information for publication in a newspaper, even if the information was classified by the Government. Nor would it be authorized against a Government employee or former employee who reveals secrets to a reporter or in a book for the purpose of informing the American people. This definition would not authorize surveillance of ethnic Americans who lawfully gather political information and perhaps even lawfully share it with the foreign government of their national origin. It obviously would not apply to lawful activities to lobby, influence, or inform Members of Congress or the administration to take certain positions with respect to foreign or domestic concerns. Nor would it apply to lawful gathering of information preparatory to such lawful activities.
We think that the district court adopted the proper test, because once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis of a criminal prosecution.